FMLA - Employee walks out, finds attorney

We have an employee who was told that she was being investigated for questionable excessive hours she paid herself in the year 2000, and first of 2001. Said employee walked out, stating stress, went to an attorney, made very, very serious accusations against her supervisor, and a couple of weeks later, through her attorney, asked for unpaid 6 month leave of absence, and before receiving an answer, "changed her mind" and requested FMLA leave, stating stress and depression. In the meantime, her attorney has been digging up as much "dirt" as possible on as many employees he can by calling employees both on company time and personal time, trying to obtain information on the supervisor to discredit him and any other employee who supports him.

My question is ... how do we proceed to protect our rights as the employer. Could she possible qualify for FMLA after this? Need your help ASAP. Thank you.


  • 4 Comments sorted by Votes Date Added
  • Without access to specific details, sounds like you need to consult with an employment law attorney. Hopefully the case is a frivolous attempt to cover up and point fingers, but I wouldn't want to take the chance.

  • I would agree that engaging an Employment Law Attorney would be wise in this case. The expense will be well worth it in the long run. As an HR Manager, I would want counsel on this one, especially in dealing with her attorney's activities.

    Your post does not specify that the employee is actually qualified for FMLA leave. That is has she worked for your company at least 12 months and has worked at least 1250 hours in the last 12 months? I assume also, that you are an employer who is subject to the FMLA based upon the size of your workforce and other criteria set forth in the Act.

    Assuming the answer to each of those issues is yes, I would go ahead and grant the request for FMLA leave (since it is unpaid, it is almost like an unpaid suspension) and continue my inquiry into the pay irregularities. Your post seems to indicate that this employee was told of the investigation, prior to her walking off the job, and assuming that you can document that fact, and ongoing inquiry would not be that unusual. I would require the employee to provide a Health Care Provider Statement showing that she is suffering from a Serious Health Condition as defined by the FMLA, and I would require her to recertify that information every 30 days during her leave of absence as allowed by the law. (This is assuming you required the same type of certification of all other employees taking and FMLA leave for their personal serious health condition.)

    Just because she has an attorney, and has filed counter claims does not absolve you from completing the pay issues. Especially since you have told her she was under investigation. She could try to make it into a case of malicious activity on the part of her employer if you leave the issue unresolved.

  • You might get around the FMLA question by suspending the employee, with pay, pending the outcome of the investigation of her alleged wrong doing. But that can be a double-edged sword. The good part is that the FMLA question becomes moot for the time being but, the suspension could be percieved as retaliation for using the FMLA. Be careful.

  • For a person to be eligble for FMLA, they have to be an active employee. Sounds to me like this person quit, citing stress as the reason and 2 weeks later wanted to apply for FMLA leave. Anyone that walks out and doesn't contact you for 2 weeks has to be considered a voluntary quit, whether she or her attorney contacts you after the 2 weeks. So unless she was unable to contact you due to a health reason (confined to mental institution perhaps?) she is a past employee with no FMLA rights whatsoever. I'd still talk to your attorney.

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